Book 'Em: It Happens Every Day

(CBS/Prometheus Books)

What really happens when law enforcement decides to prosecute a child sexual assault case? In this frank and informative book, It Happens Every Day: Inside the World of a Sex Crimes D.A., Sax shows readers how the criminal justice system works in terms you rarely hear about on the news. She assesses what's right and what needs to be changed.

Dividing the work into two parts, she begins with "Behind the One-Way Mirror," which deals with the investigation of child sexual assault.

She defines what constitutes sexual assault and then presents the ingredients of what makes a case "fileable." In the second section, "Behind the Counsel Table," Sax sheds light on the court process. She discusses issues including mandatory sentencing, plea bargains, unsupportive parents, children's testimony, and the weaknesses of the jury system.

This in-depth discussion from the front lines of law enforcement's campaign against child sexual assault aims to put all of us in a better position to protect children from a crime that is at near-epidemic proportions.

We do seem to hear about child victims of sexual predators almost daily. Is there really an increase in these cases, or does something else explain all the coverage?

Sax: Despite the perception that victims are reported on "daily," in reality child sexual abuse is underreported. In terms of both victim disclosures and reliable data about offenders, it's challenging to pinpoint the exact number of child sexual assaults. The following are just a few problems in obtaining accurate numbers of sexual abuse cases:

1. The largest bulk of statistics available are from criminal cases. And since we are limited to only the legal definitions of sexual abuse, we may be missing out on behavior that would otherwise qualify on a psychological or sociological basis.

2. Even under each state's criminal laws, there's variation in the acts and behaviors that are considered criminal. If an act is not a crime in one place and it is in another, it may not make its way into a statistical information bank.

3. Individual police departments have not had uniform statistics readily accessible to those seeking them. Until the Department of Justice began collecting statistics from police stations across the country, the numbers were all over the place. In fact, even when the statistics became uniform in the last twenty years or so, only certain specific acts were identified and reported, including forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling. These statistics do not take into account the many other acts, such as photographing children in sexual situations, that could still be subject to criminal charges, be considered sexual abuse, or cause psychological damage in someone's life.

4. If we were to look at child sexual assault from other avenues, such as from the offenders or the victims themselves, there are new problems in gathering information. First of all, offenders traditionally offer unreliable information about their offenses. If we turn to the victims, we find difficulty due to their reluctance to disclose what actually happened, memory lapses, and the reality that victims are often molested by more than one person during their lives, and at more than one specific time and place.

5. False allegations of child abuse occur when people disclose child sexual assault when it didn't happen. Not only does this affect the reliability of the statistics, but this is one of the biggest points of controversy and concern in the field because it creates the potential for heavily biased or inaccurate data.

6. Perhaps the biggest obstacle to getting accurate numbers is that victims, quite understandably, are loathe to report that they have been abused. There are so many reasons why children don't report (shame, guilt, lack of knowledge, etc.) that even the professionals don't have a full grasp of the extent of the problem.
Despite the problem of variance in reporting child sexual assaults, there are considerable data that confirm my experience that child sexual assault is rampant.
In 2007, FBI reports revealed that:

One out of five girls will be sexually molested before her eighteenth birthday.
One out of six boys will be sexually molested before his eighteenth birthday.
One out of every seven victims of sexual assault reported to law enforcement agencies was under age six.
48% of the offenders who victimized children under age six were juveniles (under eighteen).
Two out of three sexual abuses are perpetrated against teenagers or younger children.
20% of all children receive unwanted sexual messages.
75% of children who received an unwanted sexual message did not tell their parents.
Four million kids are posting on the Web every day.
There are 400,000 new victims of sexual assault each year.
There are over 550,000 registered sex offenders in the United States.
There are over 100,000 sex offenders who fail to register each year.
76% of serial rapists claim they were molested as children.
Over 40% of male juvenile delinquents were molested as children.

Perhaps the single most disturbing statistic I have come across is a study done by Dr. Gene Abel in the late 1980s on sexual offenders. In his research, he found that there was only a three percent chance of an offender getting caught for a sexual offense. Because of the problems mentioned above in reporting these crimes, Dr. Abel's statistic hasn't changed significantly over the past twenty-eight years—a damning testimonial to the continuing problem facing everyone who wants to prevent and solve these crimes.

So, in summary: despite the perception due to media reporting on select cases that there is good coverage ("daily"), in actuality the incidences of sex crimes against children are actually under-reported.

How often does a conviction depend on testimony from a child -- and how often does that keep an offender from being convicted?

Sax: Most of the time it is essential for a child to testify. In some cases, where there is an eyewitness or DNA with a confession, child testimony may not be needed (but practically speaking juries want it and expect it). In my experience a child testifying is more beneficial than people think or imagine. As tough as it seems, it is empowering and to see a kid find the strength in confronting their abuser is a part of the healing that no other part of the process can duplicate.

Even so, without corroborating evidence the criminal case becomes a "he-said, she-said" situation that is generally not filed by prosecutors' offices. Such cases are not acceptable because most states have a jury instruction like, "when there are two versions of the incident, and one points to innocence and the other to guilt, you are to adopt the version that points to innocence." This reinforces the concept in our Constitution that we are all innocent until proven guilty. Because the presumption of innocence basically means that in a tie, the case goes to the defense, prosecutors need something more. The more evidence the prosecutor has, the faster he or she can prove a case that meets the criminal standard known as beyond a reasonable doubt. (This concept is the subject of more debate than a presidential election. Inherent in this standard is the prosecutor's responsibility to show the facts prove the defendant committed the crime. While there is no requirement for certainty, it is the highest level of proof in the justice system.)
Corroboration can be very minor, such as evidence that only a victim would know. For example, in a case of abduction by a stranger, if a victim can describe a room (the scene of the crime) and has never been to that location before, this description is considered "corroboration." Types of corroboration include the defendant's prior record of similar arrests, investigations, and convictions; other victims; medical, physical, and scientific evidence; and the defendant's own statements.

Child sexual abuse accommodation syndrome is a legal/psychological term to describe the blending of several reactions when a child reveals sexual abuse. The term was coined by psychiatrist Dr. Roland Summit and is often used in court to (1) corroborate testimony that a child is acting consistently with the claim of family molestation and (2) explain why victims often recant or retract their truthful testimony in family molestation cases. While people often expect that a child will disclose sexual assault right after it takes place, children tend to delay disclosing, especially in family abuse situations. In fact, children would much rather maintain the status quo than deal with the guilt and blame involved in disclosure. The child sexual abuse accommodation syndrome consists of the following symptoms and stages through which a child's disclosure will pass: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, or unconvincing disclosures; and retractions.

If you could change one thing about the system for prosecuting child sex offenders, what would it be?

Sax: How long it takes from filing a case to its conclusion!

One of the most frustrating aspects of the criminal justice system for victims and family members is how long it takes from filing a case to its conclusion. While there are specific constitutional rights to a speedy trial for the defense and the prosecution, both parties can waive these rights and request more time.

As a prosecutor, I would try to see that cases get tried as quickly as possible. To me the only thing that gets better with age is fine wine. The passage of time usually serves only to assist the defendants, not the victims. Witnesses' memories fade; witnesses and victims move or leave the area; evidence can get lost or misplaced; and people lose interest, excitement, and the motivation to go forward. Despite these drawbacks, no one (prosecutor or defense) should go to trial until they are prepared to do so. Very often, cases are delayed pending DNA results, psychological tests, or other evidence that may resolve a case, short of a full-blown jury trial. So as prosecutors, defense attorneys, and judges weigh the requests to continue cases, they all should be mindful of the downside. They must also be realistic about what is needed to resolve a case. A case in which there is no doubt that it will go to trial should be vigorously pursued from the beginning by both parties.

What, if anything, should we do differently in how we handle child sexual predators once they have served their time?

Sax: A huge issue in this field is that of the Sex Offender Registry. Once a predator has served time in jail for the crime, he will have to register as a sex offender wherever he lives (it is a federal law known now as Megan's Law). Under this federal law, anyone convicted of child sexual assault must notify their local law enforcement of their whereabouts after being released from jail, prison, a psychiatric institution, or a treatment facility.

While each state has its own requirements as to exactly what information an offender must provide, the purpose of the law is consistent from state to state—to monitor the location of sex offenders. Some states focus on sex offenders as a whole, equally treating those convicted of any sex-related crime, whether against an adult or a child. Other states require registration only by those convicted of child-related sex crimes.

Evaluating whether these registries are fundamentally good policy (and I believe they are) has been a hot topic in the media of late. I believe that if just one child is saved from a sexual assault, a kidnap or a murder because of registration, then we have protected that child. And since children, as non-voters, do not have the ability to protect their rights legally, we as adults need to explore every possible avenue to do it for them.

The problem with sex offender lists is not necessarily the lists themselves but how we are using the lists, updating them, deciphering what they mean, and insuring that the "worst of the worst" are not only listed on this list but are actually being monitored. I could write a book on this topic – it is so extensive – but to answer the question about what we should be doing differently once predators are released: we should have a revamping the registries, making them consistent from state to state to insure that the information on the lists is meaningful to everybody. It means monitoring the privileges of parole and probation, and educating people on how to use the lists and what they mean. If we keep the registries and use them correctly, we will all be a lot safer than if they didn't exist!

What advice would you give parents to make their children less likely to be the target of a sexual predator?

Sax: Protecting children begins with every parent in every home. It is the parents' responsibility to partner with schools to teach their children how to be safe. And how do they do that? By asking tough questions and demanding straight answers. Have open and honest conversations with your kids.

Two types of safety education work well for parents and children and can easily be added to their family's safety plans: pre-planned discussions and spontaneous opportunities to teach. The first focuses on a particular issue and reinforces it over a period of time, say over a couple weeks to a month. For example, an appropriate safety lesson for a family with young children (ages five and younger) is to help them memorize key telephone numbers, such as Mom's cell, the home phone, and grandparents' or caregivers' numbers. Without making it obvious that it's a safety lesson, teaching a child a telephone number can be made into a song or a game and can be easily practiced. There is no magic age to begin safety discussions.

The key to keeping such talks from being scary is for parents to assume that body/personal safety discussions are not scary. Just because we, as adults, have myriad worries, we needn't convey our fears to our children. However, there are things kids must know before they dive into the world of independent adults. Just start the discussion. It's never too early to begin to give children information that can help them stay safe. Treat personal safety like any other parenting lesson—find appropriate times, don't tackle too much at a time, and consider the child's personal development and understanding. And above all, do not use fear or scare tactics to educate children. This can often backfire. Empowering, not scaring, children is what allows them to handle the situation, while fear tends to make them freeze and may actually disable them if they need to act in an emergency. The only thing that should scare you is not teaching or talking to your children about personal safety.

As trite and overused as the expression seems knowledge truly is power. I am not suggesting that parents need to tell kids about the gruesome details of every case in the news or drill their kids with statistics. But youngsters need to have a solid understanding of how they can defend themselves in age-appropriate ways. For example, children should know whom to approach if lost in a store (another mommy) or what to scream if someone is trying to abduct them ("You are not my dad! Call 911!)

How did being a child sex-crimes prosecutor affect your view of the world, either personally or professionally?

Sax: During the time I was a prosecutor, few people in my life could wrap their minds around how a West Side mom could go downtown and work in the trenches of the Los Angeles sex crime scene. My "co-madres" (other moms) in my personal life could not picture my court life and my colleagues at work could not fathom the details of my private life. It was challenging for me to be in both worlds at the same time (mother of three kids, wife, and prosecutor). But having both perspectives (as a prosecutor and a parent) helped me to write my books more effectively. My time at the DA's office, although very challenging, truly was a rewarding experience. I left the DA's office specifically because I didn't want to work on a case-by-case basis anymore.

Dispensing justice one victim, one case, and one jury at a time can be limiting. I am now speaking and advocating on behalf of a much larger group. As I blog, write, and speak, I have experienced the huge impact one can make on society via the power of "saying it like it is" and utilizing various media mediums. The only difference between the popular media versus a courtroom setting is that people watching TV, listening to the radio, or reading are doing so because they want to, not because they received a summons (that they could not get out of) in the mail. So my message of keep kids safe reaches a much wider audience and I am grateful to have their attention.

BONUS QUESTION: What question should Crimesider have asked you that we didn't... and what's the answer?

Should a parent report a suspected child abuser to the police or do they need tangible evidence?

Sax: If you ever suspect that any crime has been committed, whether it's child sexual abuse, child abuse, or anything else, always choose to let the police know what's going on. Police departments are responsible for investigating complaints and determining whether a crime has occurred. One of the biggest problems in investigating possible child sexual abuse occurs when parents take on the role of investigator. Not only does this not help an investigation, but it can actually work against it. Talking to the suspect is one of the best tools that police officers have. But a suspect who believes that someone is onto him could flee the area before the police talk to him, spend time preparing lies to cover up the abuse, or, worse yet, become violent. Just as you would never fill your own cavity or do surgery on yourself, no one other than law enforcement, child protective services, or other investigative agencies should conduct an investigation.

I've heard about concerned parents who have called their lawyer to make a report or to inquire about the reporting process. Although some very good- hearted and well-intentioned lawyers are out there, a good lawyer should refer a parent to law enforcement or child protective services.

Here's the bottom line: If you have a suspicion, a concern, a question, or a worry about an individual, make a report to the police. It will be up to the investigators—not you—to decide what course of action to take.

(CBS)

She is a regular legal commentator on Today, Nancy Grace, Larry King Live and Fox News, and has a weekly radio show, Justice Interrupted. Sax lives with her husband and three children in Los Angeles, California.

Read an Excerpt at Prometheus Books